Court Rules Police Must Allow Media Access to Disaster Scenes

When a Pacific Southwest Airlines jet crashed in a North Park neighborhood one morning nearly eight years ago, the conflicting duties of the police and the press set off an ugly confrontation amid the wreckage.

Steven Leiserson, at the time a cameraman for KFMB-TV, was assigned to photograph the scene of the Sept. 25, 1978, disaster, in which 144 people died when a Boeing 727 collided with a Cessna 172 and smashed into a residential area.

Fred Edwards, a San Diego police officer, was under orders to keep everyone but emergency personnel away from the crash site.

Edwards ended up arresting Leiserson that morning for ignoring directions to stay outside the zone cordoned off by police, but a judge later threw out the charges. Leiserson ended up suing Edwards and the City of San Diego to test a state law that guarantees the press access to the scenes of disasters and accidents.

After years of litigation, a state appellate court this week ruled on Leiserson’s suit--and both sides won.

The 4th District Court of Appeal refused to overturn a lower court ruling that Edwards’ arrest of Leiserson was reasonable. But in a precedent-setting decision, the appellate judges gave the media considerable leeway to report on disasters, ruling that state law is designed to preserve the public’s right to know about major news events.

“We won on principle, but we lost on money,” said El Cajon attorney Ron Hutcherson, a former reporter who represented Leiserson in the case. “The case establishes a number of very good guidelines for press people and police to have in mind at disaster and accident sites.”

Following a non-jury trial of Leiserson’s suit in 1983, Superior Court Judge Robert Carter ruled that the cameraman’s arrest was appropriate.

Carter said police fears for reporters’ and photographers’ safety were reason to limit press access to the crash site. Moreover, he said that police officials had adequately met the media’s needs by setting up a press zone at one edge of the disaster area.

The appellate court, however, rejected those conclusions. In a 22-page opinion, Justice Howard B. Weiner said the state Penal Code is clear in stating that police officers can do nothing to interfere with press coverage of accidents and disasters.

If police officials are concerned that reporters will be injured and sue the city for failing to protect them, Weiner said, they can relieve public agencies of liability by warning the press of the risks of a disaster site. But they cannot bar the media, he ruled.

“Notwithstanding such a safety hazard, the Legislature has concluded that the public’s right to know is more important,” the opinion says.

Establishing a cordoned-off “press zone” at a disaster also may be inappropriate, depending on the circumstances, the judges ruled. The opinion notes that Leiserson, for instance, freely wandered through the crash site for half an hour--”apparently without interfering with anyone”--before Edwards confronted him.

“Press representatives must be given unrestricted access to disaster sites unless police personnel at the scene reasonably determine that such unrestricted access will interfere with emergency operations,” the opinion says. “This means that members of the press must be accommodated with whatever limited access to the site may be afforded without interference.”

With seeming reluctance, though, the appellate judges upheld Carter’s final ground for holding that Leiserson’s arrest was justified.

That rationale, which surfaced in a bizarre bit of testimony at the 1983 trial of Leiserson’s suit, was that police believed the crash scene may have been a crime site, and that limits on press access therefore were legal and necessary.

At the trial, the former San Diego police sergeant who ordered the access limits testified that he had been told that the crash might have resulted from an attempt to assassinate Mervyn Dymally, the California congressman who then was the state’s lieutenant governor. The city’s lawyer argued that police, the press and the courts long have recognized that reporters can be excluded from crime scenes.

Weiner’s opinion is skeptical of the crime-scene rationale. “Frankly,” it says, “we have pondered the question whether the ‘Mervyn Dymally incident’ was in whole or part a post hoc justification for an exclusion order which was in reality based on reasonable, but nonetheless legally erroneous, grounds for concern of the safety of the press.”

Nonetheless, the appellate judges said they were obliged to defer to Carter’s decision that the police action was reasonable. So they upheld his ruling and the city’s victory over Leiserson’s claim of false arrest.

One media law expert said Thursday that the decision did not appear “too troublesome or threatening” to the press.

“It’s an improvement if we now have recognition by the appellate court that there is such a thing as a statutory mandate to let the press in and give them some reasonable chance to cover a disaster from close quarters,” said Terry Francke, legal counsel to the California Newspaper Publishers Assn.

In other instances, Francke said, police have essentially ignored the law allowing media access to disasters. When a major earthquake struck Coalinga in May, 1983, for instance, the press was barred from the entire city for more than a day and then only allowed to walk through on tightly-guided tours, he said.

“It became all too apparent that most of the officers on the scene--sheriff’s people, the California Highway Patrol, and some police departments--weren’t apparently that conversant with the statutory access law and really had to be told about it,” Francke said.

In San Diego, city officials said the court ruling would not change the way police deal with the media at disaster scenes.

“I don’t think this is going to result in any confusion whatsoever regarding the needs of law enforcement versus the needs of the news media,” said Eugene Gordon, the deputy city attorney who argued the case during the trial and appeal. “If anything, it was a clarification.”

Police spokesman Bill Robinson, who handled media relations at the PSA crash site in 1978, said the arrest of Leiserson and the brief detention of Barry Fitzsimmons, a photographer for the San Diego Union and Tribune, prompted police to develop written policies for dealing with the press at disasters.

The policy, he said, is to be “extremely open” with the media. But while the rules say the press will have free access to disaster sites after being warned of potential dangers, Robinson acknowledged that individual officers “have occasional brushes” with reporters and photographers under the stress of field conditions.

Ironically, in fact, police made their first arrest of a member of the press since the PSA crash just last week, when a cameraman for KCST-TV was arrested for allegedly interfering with firefighters during a blaze at U.S. International University.

David Linder, executive producer of the station’s newscasts, said Thursday that the citation against cameraman Noe Gonzalez was dropped a few days later.

Fitzsimmons said Thursday that he was still awaiting a trial date for a federal court suit challenging his detention the morning PSA Flight 182 crashed in North Park. Police-press relations have improved since the clashes that day, he said--in part because they prompted him to establish the San Diego News Photographers Assn.

“Through them, we work hand in hand with the police department, and we work really well,” Fitzsimmons said.